F. Final EISs
In This Section You Will Learn:
- the content and processing of a final EIS.
1.What is a final EIS (FEIS)?
A final EIS consists of:
- the draft EIS;
- any necessary corrections or revisions to the draft EIS;
- copies or a summary of all substantive comments received, indicating their source (correspondence, hearing, etc.); and
- the lead agency's responses to substantive comments.
2. How may the lead agency incorporate the draft EIS into the final EIS?
The lead agency may either directly include the full draft EIS, or may incorporate the draft EIS by reference. In either case, however, the lead agency should include any necessary changes or additions to the draft EIS, with the reasons for these changes. Where changes are relatively few, and do not involve substantive changes to the draft EIS, an errata sheet listing changes to be made to the draft will suffice as the summary of changes. Where major substantive changes will be made to the draft EIS, revised text sections may be more practical.
3. Should the full hearing record on the draft EIS be included in the final EIS?
No. The hearing record should not be included in the main text of the final EIS, however, a summary of hearing comments must be part of the final EIS, and the full hearing record should be attached as an appendix to the final EIS and must be made available for public review along with any other reference material.
4. Who receives the final EIS?
The final EIS must be sent to all involved agencies, and to everyone who received a copy of the draft EIS. If the final EIS is lengthy, or the number of documents available is limited, the lead agency may provide copies for review in local public libraries. In such cases, the lead agency must provide notice to any recipients of the draft EIS who will not be receiving a final EIS to advice them where copies are available for review.
Additionally, under a 2005 amendment to SEQR, lead agencies are required to post all final, as well as draft EISs, on a publicly accessible website.
5. Must the lead agency respond to all comments raised in the review of the draft EIS, either in writing or at public hearings?
The lead agency must respond to substantive comments. General statements of objection or support should be noted in the comment summary, but need no response. The lead agency may choose to group comments by topic, and respond only once for each topic, so that responses in the final EIS are not repetitive. Comments do not need to be responded to individually or in order of their receipt.
6. Who decides what comments are "substantive," requiring response in the final EIS?
The lead agency decides which comments on a draft EIS constitute "substantive" comments and must, therefore, be responded to in the final EIS.
7. How does the lead agency decide which comments are substantive?
In determining whether comments received are "substantive", the lead agency should assess the relevance of the comments to identified impacts, alternatives and mitigation, or whether the comments raise important, new environmental issues, not previously addressed. The lead agency may also choose to use its responses to comments as an opportunity to explain why an impact is not significant, why a particular topic is not included in the final EIS, or how an alternative or proposed mitigation would work. Clarification of scientific terms, concepts or data interpretation may also be necessary in a final EIS.
When a subject has been raised frequently, even if the issue is not relevant to the proposed action, it is good practice to address that topic at least briefly. Speculative comments, or assertions that are not supported by reasonable observations or data, need no response. Where comments identify minor discrepancies in wording, or typographical errors, the lead agency should make those corrections, but no other response is needed.
8. What should the lead agency do if it receives no substantive comments on a draft EIS?
In the final EIS, the lead agency should acknowledge any comments that were received, and make note of any minor revisions made to the draft EIS.
9. Who is responsible for the preparation of the final EIS?
The lead agency is responsible for the adequacy and accuracy of the final EIS. A project sponsor may be requested to prepare draft responses to some or all of the substantive comments received on a draft EIS. However, the lead agency must still review any responses prepared by the sponsor to ensure that the analyses and conclusions accurately represent the lead agency's assessment. The lead agency may need to edit a sponsor's draft responses. The lead agency may also consult with other involved agencies, or with outside consultants, but this in no way reduces the responsibility of the lead agency for the final product.
10. Are there times when a draft EIS is produced but no FEIS is required?
Yes, under either of two circumstances. First, if the lead agency determines, on the basis of the draft EIS and public comment period, that the proposed action will not have a significant adverse impact on the environment, a negative declaration may be prepared and filed in lieu of a final EIS. In most cases, however, proceeding to a final EIS will create a more coherent, defensible record.
Second, if a project sponsor withdraws its application after a draft EIS has been prepared, no final EIS need be prepared.
11. How soon after acceptance of a draft EIS must a final EIS be accepted and filed?
Where the EIS involves a project for which applications are under review by the lead agency, and if no hearing was held, the lead agency has 60 days from the filing of the draft EIS to produce the final EIS. If a hearing was held, the lead agency has 45 calendar days from close of the hearing record to file its accepted final EIS.
The lead agency may extend the time for filing if it needs more time to adequately prepare the final EIS. Further, the lead agency may extend its time for filing if it concludes that it must materially reconsider or modify the EIS because review of the draft revealed additional significant adverse environmental impacts related to the proposed action. When a lead agency concludes that it must extend the time for preparation of a final EIS, it is good practice to advise the applicant in writing, including an estimated date for completing the final EIS.
If a lead agency concludes that review of the draft EIS revealed such significant issues that preparation of a supplemental EIS is necessary, then the rules governing preparation of that supplemental EIS (link leaves DEC website) would apply.
12. Does SEQR require a hearing on a final EIS?
No. Neither the SEQR statute, nor the regulations, provide for a hearing on a final EIS.
13. Is there a comment period for final EISs?
No. SEQR requires that the lead agency, and all other involved agencies must wait for at least ten days after the filing of the final EIS before making their findings and final decisions on the action. This period is not a comment period, but instead allows time for the involved agencies and any interested parties to consider the final EIS. While concerned parties, or other agencies, may comment in writing to the lead agency on the final EIS, the lead agency has no obligation to respond to comments on a final EIS.
14. Is there any value in commenting on a final EIS?
Interested parties or agencies may choose to submit comments on a final EIS to clarify points made earlier, or to identify comments that have not been satisfactorily responded to in the final EIS. These comments could influence the lead agency, or other involved agencies, in making findings and taking final actions.
15. Is a final EIS the last step in the SEQR EIS process?
No. The final step in SEQR is the preparation of findings by the lead agency and each involved agency at the time each makes its final decision regarding the proposed action. Findings are made after the final EIS has been accepted.
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